FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30328
Plaintiff - Appellee, D.C. No. 2:10-cr-06017-EFS-1
v.
MEMORANDUM *
ASHONE MIKAH HOLLINÏUEST,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted June 7, 2011
Seattle, Washington
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.
Ashone Hollinquest was charged with being a convicted felon in possession
of a firearm in violation of 18 U.S.C. y 922(g). He pled guilty, pursuant to a
conditional plea that preserved his right to appeal the district court's denial of his
motion to suppress.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In this case, police officers were called to the scene by Miguel Montijo, a
Red Lion Hotel employee. Montijo told the dispatcher that he had heard some
people say that a man had a gun. ER 173. Montijo reported that the man was
wearing a blue shirt, was in the parµing lot, and had arrived there in a burgundy
SUV. ER 173. Montijo told police that the man had just pulled up to the hotel and
that he had not brandished or displayed a weapon. ER 173. This call was
insufficient to establish reasonable suspicion of any past, present, or future
criminal activity. See Florida v. J.L., 529 U.S. 266 (2000).1 When the police
arrived at the scene, hotel security pointed at Hollinquest's burgundy SUV. The
police officers saw Hollinquest, who was wearing a blue shirt, engaged in a verbal
dispute with a group of people, and he made two pointing or jabbing motions at the
group with a finger on his left hand; his right hand 'appeared to be near his
waistband.' ER 7. These facts did nothing to change the police officers' initial
1
Contrary to the dissent's contention, the circumstances in this case are not
'similar' to Adams v. Williams, 407 U.S. 143 (1972) . In fact, as the Supreme
Court said in that case, '[t]he informant was µnown to him [the officer] personally
and had provided him with information in the past. This is a stronger case than
obtains in the case of an anonymous telephone tip. The informant here came
forward personally to give information that was immediately verifiable at the
scene.' Id. at 146. By contrast, in this case, the informant was still at the scene but
he never came forward personally and he was never interviewed. Moreover, there
is no indication that the police officers even µnew that he was at the scene when
they arrived, nor any indication that he had provided information to the police in
the past or that the police officers µnew him personally.
2
lacµ of reasonable suspicion of criminal activity. Therefore, the Terry stop was
unlawful and the evidence seized during the stop must be suppressed. 2
REVERSED and REMANDED.
2
We do not reach Hollinquest's de facto arrest argument, nor do we decide
whether he properly preserved that argument before the district court.
3
FILED
U.S. v. Hollinquest, Case No. 10-30328 JUL 19 2011
Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I respectfully dissent. In my view, this case is not the same as one involving
a classic anonymous tip. The person who reported to Montijo that there was a man
with a gun was still present when the police arrived. In similar circumstances, the
United States Supreme Court has upheld a determination that reasonable suspicion
existed. See Adams v. Williams, 407 U.S . 143, 147 (1972) (holding that
reasonable suspicion exists when the information is 'immediately verifiable at the
scene . . . .'). The police officers in this case did absolutely nothing wrong.
Indeed, it is liµely that their timely arrival prevented a shooting. Because I would
uphold the district court's denial of the motion to suppress, I respectfully dissent.